Opinion
19-P-103
08-13-2020
COMMONWEALTH v. PAUL TRITES.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bifurcated trial, the defendant, Paul Trites, stood convicted of operating under the influence (OUI) of intoxicating liquors, fifth and subsequent offense. G. L. c. 90, § 24 (1) (a) (1). The defendant raises three issues on appeal: (1) that a defect in the docket of one of the prior predicate offenses renders it invalid as a predicate offense, requiring resentencing as forth offender, (2) the judge erred in failing to instruct the jury that a police officer's opinion on intoxication is not expert testimony, and (3) the judge improperly admitted evidence of the defendant's refusal to perform the roadside alphabet sobriety test. We affirm.
After the first phase of the trial, the defendant also stood convicted of operating a motor vehicle after suspension or revocation of license under G. L. c. 90, § 23. None of the issues raised on appeal pertain to that conviction.
Discussion. The defendant raises for the first time on appeal a challenge to one of the five predicate offenses. Relying on only the absence of a notation in the docket indicating the name of trial counsel or that he waived counsel, the defendant asserts that the conviction is legally defective and cannot serve as a predicate offense. We disagree because "a defendant generally is presumed to have been represented by (or to have waived) counsel in prior proceedings that resulted in a conviction, and the Commonwealth need not come forward with proof on the point unless the defendant first makes a showing that the conviction was obtained without representation by or waiver of counsel." Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 905 (2010). Aside from pointing to the docket, the defendant made no other showing of an asserted defect in the proceedings. He did not claim at trial that he was not represented and did not waive his right to counsel. Accordingly, without more, the defendant has failed to satisfy his burden that the conviction was invalid. See Commonwealth v. Yardley Y., 464 Mass. 223, 228-229 (2013) (absence of specific indication that interpreter was present did not rebut presumption that interpreter was present); Commonwealth v. Hubbard, 457 Mass. 24, 26 (2010) (absence of written trial waiver insufficient to invalidate plea). Accordingly, we perceive no error in the use of this conviction to establish one of his four predicate offenses.
Even assuming the defendant claimed he had neither been represented by counsel nor waived his right to counsel, such statements would not satisfy his burden. Cf. Commonwealth v. Hoyle, 67 Mass. App. Ct. 10, 15 (2006) (self-serving affidavit that defendant did not sign jury waiver not sufficient to overcome presumption of regularity).
In any event, the Commonwealth introduced evidence of five prior OUI convictions. Thus, even excluding the one challenged conviction, the judge was still warranted in finding that the defendant had been convicted of four prior predicate offenses and, therefore, properly sentenced the defendant as a fifth OUI offender. See Commonwealth v. Bowden, 447 Mass. 593, 602 (2006) (proof of three prior OUI offenses sufficient to convict for fourth offense). See also Commonwealth v. Lockwood, 95 Mass. App. Ct. 189, 196 (2019) (rejecting argument that "by proving more than was required, the Commonwealth failed to prove enough"). There is no error.
We also see no merit to the defendant's claim that the judge created a substantial risk of a miscarriage of justice by failing to instruct the jury, sua sponte, that the arresting officer's opinion as to the defendant's performance of the field sobriety test is not expert testimony. This court has rejected the need for such an instruction to prevent prejudice. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390 n.5 (2017) (rejecting suggestion in dissent that similar instruction be required). Accordingly, we too conclude that the judge's failure to give an unrequested and unrequired instruction in no way prejudiced the defendant, much less created a substantial risk of a miscarriage of justice. See Commonwealth v. O'Brien, 432 Mass. 578, 590 (2000) (no error in refusing to give instruction that is not required).
Finally, we reject the defendant's argument that the judge erred in admitting evidence of his inability to complete the roadside alphabet test. Evidence of a defendant's refusal to take a sobriety test may not be admitted at trial. Opinion of Justices, 412 Mass. 1201, 1211 (1992). However, "[o]nce the defendant agrees to take the test and attempts it, his expressions of difficulty or inability to perform or to complete it, such as 'I can't do this,' 'I give up,' or 'I've had too much to drink,' are not the products of compulsion and thus are admissible." Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778-779 (2013). The clear distinction is "the presence or absence of governmental compulsion." Id. By commencing to recite the alphabet while the officer was administering the test instructions, the defendant consented to taking the test. See id. at 779 ("in this case the defendant did not refuse to perform field sobriety tests; instead, he attempted unsuccessfully to do so"). See also Commonwealth v. Voisine, 414 Mass. 772, 783 (1993) (fact that consent is indicated through action rather than words is of no effect). There is also nothing in the record to suggest the defendant's consent was compelled. Rather, the defendant voluntary began reciting the alphabet. The defendant was halfway through his recitation of the alphabet when he stated, "I can't do this," and when asked to retry, the defendant did not refuse to take the test but rearticulated his inability to complete the task. See Commonwealth v. Sands, 424 Mass. 184, 189 (1997) (no evidence that statements were involuntary where "[t]he defendant merely had to say, 'No' to withhold consent to taking the breathalyzer test, but instead, he blurted-out that he was intoxicated beyond the legal limit"). Because the defendant's statements resulted from the defendant's voluntary agreement to submit to the alphabet test, they were properly admitted as evidence of the defendant's poor performance on the test. Brown, supra at 779.
Judgments affirmed.
By the Court (Maldonado, Singh & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 13, 2020.